Notes:

Hello everyone. Welcome to the legalism file. This will be the critical argument for the UGA debate camp this year. What follows is a basic explanation of the argument as well as the explanation of some of the more common affirmative answers.

Starting with the negative, the argument is that the people and institutions that do surveillance will find ways around the affirmative plan in order to continue spying on domestic folks. This will happen as long as we work within the government and state system in order to produce reform. The first piece of Greenwald evidence is excellent on this point, even going so far as to describe the process of fiat in a way, The impact to this argument is threefold. First of all the affirmative doesnt solve because the surveillance state will find a way around the plan. Second the attempt to reform makes the problem worse because people think something has been done so it disables activism. Third any reform that does happen will be shaped by the surveillance state to be ineffective. You should note that this is two different solvency take outs as well as a solvency turn argument that also functions as the internal link to the impact argument.

The impact argument is that by furthering the surveillance state the affirmative causes genocide and extinction because of the dramatic increases in state power and the actions the state will take to suppress dissent once it becomes too powerful. It also makes other claims that complicate affirmative advantages which you should look for.

The alternative argument is that the negatives legal criticism is a good and productive action. This piece of evidence states that criticism can be onsidered to be the only legitimate action we can take.

Next is the outline of the affirmative arguments.

The aff section is set up as a bit of a grab bag of aff arguments that you should use to form blocks. They include arguments against all the major components of the K. The primary thrust of the position that the aff team should take revolves around defending the notion that reforms can be effective and are an appropriate action to take. The affirmative team should be able to use these arguments to win a permutation. The affirmative arguments also include an argument that it is bad to just criticize the legal system and that failing to advocate for change in the system means that authoritarian powers will take over and make the situation way worse.

Negative

1NC ShellAttempts to reform surveillance from within the system are doomed to fail the NSA will find loopholes, congress wont take oversight seriously, the executive branch will actively try and circumvent, and the courts are already in the pocket of the surveillance state. The affirmative attempts to reform merely placate criticism and snuff out any chance for real reform

Greenwald, 2015(Glen, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead, 11/19, The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/)There is a real question about whether the defeat of this bill is good, bad, or irrelevant. To begin with, it sought to change only one small sliver of NSA mass surveillance (domestic bulk collection of phone records under section 215 of the Patriot Act) while leaving completely unchanged the primary means of NSA mass surveillance, which takes place under section 702 of the FISA Amendments Act, based on the lovely and quintessentially American theory that all that matters are the privacy rights of Americans (and not the 95 percent of the planet called non-Americans). There were some mildly positive provisions in the USA Freedom Act: the placement of public advocates at the FISA court to contest the claims of the government; the prohibition on the NSA holding Americans phone records, requiring instead that they obtain FISA court approval before seeking specific records from the telecoms (which already hold those records for at least 18 months); and reducing the agencys contact chaining analysis from three hops to two. One could reasonably argue (as the ACLU and EFF did) that, though woefully inadequate, the bill was a net-positive as a first step toward real reform, but one could also reasonably argue, as Marcy Wheeler has with characteristic insight, that the bill is so larded with ambiguities and fundamental inadequacies that it would forestall better options and advocates for real reform should thus root for its defeat. When pro-privacy members of Congress first unveiled the bill many months ago, it was actually a good bill: real reform. But the White House worked very hard in partnership with the House GOPto water that bill down so severely that what the House ended up passing over the summer did more to strengthen the NSA than rein it in, which caused even the ACLU and EFFto withdraw their support. The Senate bill rejected last night was basically a middle ground between that original, good bill and the anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me, the most important point from all of this: the last place one should look to impose limits on the powers of the U.S. government is . . . the U.S. government. Governments dont walk around trying to figure out how to limit their own power, and thats particularly true of empires. The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSAs powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means theyd easily co-opt the entire reform process. Thats what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA oversight courtthe committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy. Ever since the Snowden reporting began and public opinion (in both the U.S. and globally) began radically changing, the White Houses strategy has been obvious. Its vintage Obama: Enact something that is called reformso that he can give a pretty speech telling the world that he heard and responded to their concernsbut that in actuality changes almost nothing, thus strengthening the very system he can pretend he changed. Thats the same tactic as Silicon Valley, which also supported this bill: Be able to point to something called reform so they can trick hundreds of millions of current and future users around the world into believing that their communications are now safe if they use Facebook, Google, Skype and the rest. In pretty much every interview Ive done over the last year, Ive been asked why there havent been significant changes from all the disclosures. I vehemently disagree with the premise of the question, which equates U.S. legislative changes with meaningful changes. But it has been clear from the start that U.S. legislation is not going to impose meaningful limitations on the NSAs powers of mass surveillance, at least not fundamentally. Those limitations are going to come fromare now coming from very different places:

The surveillance state ensures genocide and extinction

Saul, 15(Quincy, Author, Editor, and Founder of Ecosocialist Horizons, March 23, The Four Horsemen of the Apocalypse, Truth Out, http://www.truth-out.org/opinion/item/29664-the-four-horsemen-of-the-apocalypse)Surveillance States: 1984 has arrived, only 30 years after Orwell predicted. The revelations brought to us by Chelsea Manning, Julian Assange and Edward Snowden show us a world in which everything is under surveillance. Julian Assange has written with great eloquence about the death of civil society overseen by the surveillance state. (1) Today in the United States alone there are more than 5 million people working under security clearances - more than the population of Norway. The mirror image of this army of spies is the enormous number of people in prison, including more African Americans under state control than there were slaves prior to the Civil War. This is the last stage of the state, the totalitarianism that is the last gasp of every totality. The surveillance state has the capacity for not only genocide, but also extinction: It is capable of repressing and destroying the revolutionary movements that still have hope to fight for life. The surveillance state rides the pale horse of the apocalypse, representing death. It is difficult to interpret our times without reference to myths and prophecy. As Elias Capriles has written, the chickens of all the world's cultures and histories have come home to roost: Like a scientific sorcerer's apprentice, we have created technological Golems and Babels who have immersed us in extreme confusion, and confronted us with the infernal punishments of Prometheus, Sisyphus and Tantalus, bringing us to the edge of our own annihilation. (2) We are witnessing an end times to the capitalist system. As Marx predicted in the most concise way, the enemy of capital is capital. But since this is not comprehensible to the majority of those too invested in the capitalist life-world to understand the contradiction, we are at an impasse of unconsciousness, just when we need to be most awake. What lies ahead? It is almost impossible to see, and very few are looking. In the realms of elite economic planning, they rarely look more than five years in advance. As Jorge Riechmann has written, "It is an intellectual and moral scandal that in our societies of risk, 10 years for many people is long term." (3) It is not only a scandal, it is a death sentence. As was known thousands of years ago, when there is no vision, the people perish. But in the ancient Greek, apocalypse and revelation are the same word. What is the tipping point between the end of the world and the beginning of the world? You are. We are. It's time to realize it. Time to seize the day and never let go.

Constant criticism and trashing of the legal system is necessary to expose traditional legal thought the fate of humanity is at stake

Hutchinson and Monahan in 84CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law ReviewMoreover, any theory that the Critical scholars provide must be capable of accommodating both their doctrine of social contingency and the contradiction between community and individual. The CLSers must actively work to fulfill their self-appointed roles as creative mediators between the ideal of freedom and the actuality of a free world. The challenge is a supreme one, and the long term prospects of the CLS movement are not all that hangs in the balance: If the CLSers are right about the contingency of history and the insuperability of the fundamental contradiction, the very "fate of humanity" n124 is at stake.We do not mean to suggest that the extensive CLS critiques of existing law and legal theory are purely negative and without constructive potential. Criticism can be a very creative therapy; criticism can liberate and enlighten. By "unfreezing" the world as it now [*228] appears, the Critical scholars hope to enable individuals to imagine and attain new possibilities for self-development and meaningful social interaction. For the CLSers, criticism is an antidote to the social paralysis induced and sustained by the existing hierarchical nature of society. n125 By reassuring people that things need not always be as they now are, the CLS movement can inspire the confidence necessary to reject prevailing arrangements. And because the CLSers believe that "the strength to live with the sober truth will become general [only when] the causes of untruth are removed," n126 "trashing" is viewed as a valid form of legal scholarship. Indeed, to some of the Critical scholars, it is the "most valid form": n127

2NC Overview

Link: FISC

FISC fails and will be cooptedSetty, 15(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)The FISC differs from Article III courts in numerous ways: Its statutory scope is limited to matters of foreign intelligence gathering; its judges are appointed in the sole discretion of the Chief Justice of the United States Supreme Court; its proceedings are secret; its opinions are often secret or are published in heavily[*83]redacted form; and its process is not adversarial as only government lawyers make arguments defending the legality of the surveillance being contemplated.n70Many of these differences bring into doubt the legitimacy of the court, its ability to afford adequate due process regarding civil liberties concerns, and its ability to uphold the rule of law in terms of government accountability. Compounding this legitimacy deficit is the FISC's own loosening of the relevance standard under Section 215 of the PATRIOT Act such that the FISC has found that bulk data collection without any particularized threat or connection to terrorism is legally permissible.n71 Historically, the FISC has rejected NSA surveillance applications too infrequently to be considered a substantial check on government overreach as an ex ante matter.n72As an ex post matter, it is unclear to what extent the FISC's work guarantees any meaningful accountability over NSA surveillance activities. On the one hand, because the FISC lacks an adversarial process and has no independent investigatory authority, the FISC only addresses ex post compliance problems when the government itself brings the problem to the court's attention.n73As such, FISC judges rely on the statements of the government as to the government's own behavior and lack the authority to investigate the veracity of the government's representations.

FISA only serves to rubberstamp NSA actions

Greenwald, 13Glen, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Fisa court oversight: a look inside a secret and empty process, The Guardian, June 19, http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecyThe way to bring actual transparency to this process it to examine the relevant Top Secret Fisa court documents. Those documents demonstrate that this entire process is a fig leaf, "oversight" in name only. It offers no real safeguards. That's because no court monitors what the NSA is actually doing when it claims to comply with the court-approved procedures. Once the Fisa court puts its approval stamp on the NSA's procedures, there is no external judicial check on which targets end up being selected by the NSA analysts for eavesdropping. The only time individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications are purely domestic.

Link: Courts

Courts are the worst when it comes to avoiding cooption by the surveillance state

Greenwald, 2015(Glen, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead, The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/)For a variety of reasons, when it comes to placing real limits on the NSA, I place almost as little faith in the judiciary as I do in the Congress and executive branch. To begin with, the Supreme Court is dominated by fiveright-wing justices on whomthe Obama Justice Department has repeatedly reliedto endorse their most extreme civil-liberties-destroying theories. For another, of all the U.S. institutions that have completely abdicated their role in the post-9/11 era, the federal judiciary has probablybeen the worst, the mostconsistentlysubservient to the National Security State.

The court only serves to mask NSA abuses, -- FISA Proves

Greenwald, 13Glen, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Fisa court oversight: a look inside a secret and empty process, The Guardian, June 19, http://www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecyThe GOP chairman of the House Intelligence Committee, Mike Rogers, told CNNthat the NSA "is not listening to Americans' phone calls. If it did, it is illegal. It is breaking the law." Talking points issued by the House GOP in defense of the NSA claimed that surveillance law only "allows the Government to acquire foreign intelligence information concerning non-U.S.-persons (foreign, non-Americans) located outside the United States." The NSA's media defenders have similarly stressed that the NSA's eavesdropping and internet snooping requires warrants when it involves Americans. The Washington Post's Charles Lane told his readers: "the government needs a court-issued warrant, based on probable cause, to listen in on phone calls." The Post's David Ignatius told Post readers that NSA internet surveillance "is overseen by judges who sit on the Foreign Intelligence Surveillance Court" and is "lawful and controlled". Tom Friedman told New York Times readers that before NSA analysts can invade the content of calls and emails, they "have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress." This has become the most common theme for those defending NSA surveillance. But these claim are highly misleading, and in some cases outright false. Top secret documents obtained by the Guardian illustrate what the Fisa courtactually does and does not do when purporting to engage in "oversight" over the NSA's domestic spying. That process lacks many of the safeguards that Obama, the House GOP, and various media defenders of the NSA are trying to lead the public to believe exist. Many of the reasons these claims are so misleading is demonstrated by the law itself. When the original Fisa law was enacted in 1978, its primary purpose was to ensure that the US government would be barred from ever monitoring the electronic communications of Americans without first obtaining an individualized warrant from the Fisa court, which required evidence showing "probable cause" that the person to be surveilled was an agent of a foreign power or terrorist organization. That was the law which George Bush, in late 2001, violated, when he secretly authorized eavesdropping on the international calls of Americans without any warrants from that court. Rather than act to punish Bush for those actions, the Congress, on a bipartisan basis in 2008, enacted a new, highly diluted Fisa law the Fisa Amendments Act of 2008 (FAA) that legalized much of the Bush warrantless NSA program. Under the FAA, which was just renewed last December for another five years, no warrants are needed for the NSA to eavesdrop on a wide array of calls, emails and online chats involving US citizens. Individualized warrants are required only when the target of the surveillance is a US person or the call is entirely domestic. But even under the law, no individualized warrant is needed to listen in on the calls or read the emails of Americans when they communicate with a foreign national whom the NSA has targeted for surveillance. As a result, under the FAA, the NSA frequently eavesdrops on Americans' calls and reads their emails without any individualized warrants exactly that which NSA defenders, including Obama, are trying to make Americans believe does not take place. As Yale Law professor Jack Balkin explained back in 2009: "The Fisa Amendments Act of 2008, effectively gives the President - now President Obama - the authority to run surveillance programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is because New Fisa no longer requires individualized targets in all surveillance programs. Some programs may be 'vacuum cleaner' programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no US person is directly targeted as the object of the program. . . . "New Fisa authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States) which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda." As the FAA was being enacted in mid-2008, Professor Balkin explained that "Congress is now giving the President the authority to do much of what he was probably doing (illegally) before".

Link: Congress

Congress only serves to broaden the surveillance state, it cant keep it in check, empirical examples proveSetty, 15(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)Historically, congressional hearings and investigations have been a powerful tool to rein in executive branch overreaching. n60 However, it seems that the extreme secrecy surrounding the NSA surveillance programs undermined the efficacy of these oversight powers, to the point that they may have been reduced to an ersatz form of accountability. One prominent example stems from a Senate oversight hearing on March 12, 2013, in which Senator Ron Wyden specifically asked Director of National Intelligence James Clapper if the NSA was systematically gathering information on the communications of millions of Americans. n61 Clapper denied this, yet subsequent revelations confirmed that the broad scope of the data collection included metadata for telephonic communications, as well as content data for emails, texts, and other such writings. n62 After public discussion of the discrepancy in his testimony, Clapper commented that he gave the "least most untruthful" answer possible under the circumstances. n63 Senator Wyden expressed disappointment and frustration that even while under oath at an oversight hearing, Clapper misled the Senate. n64 The ability for congressional oversight is further hampered by a general lack of access to information about the details of the NSA Metadata Program n65 and [*82] lack of ability to discuss publicly whatever knowledge is shared with Congress. n66 In fact, it remains unclear whether senators, including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew of the lapses in NSA procedure until after such information was leaked to news sources. n67 Further revelations indicate that administration statements made to Congress even after the Snowden disclosures were not entirely accurate. n68 These examples are not determinative, but taken together, they raise significant doubt to the extent of accurate information regarding surveillance programs being made available to congressional oversight committees, and whether the oversight committees can function as effective accountability measures n69 without the benefit of illegally leaked information such as the Snowden disclosures.

Link: Privates

Private companies are no better theyll turn over data the instant the government asks for itGreenwald, 2015(Glen, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead, The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/)In pretty much every interview Ive done over the last year, Ive been asked why there havent been significant changes from all the disclosures. I vehemently disagree with the premise of the question, which equates U.S. legislative changes with meaningful changes. But it has been clear from the start that U.S. legislation is not going to impose meaningful limitations on the NSAs powers of mass surveillance, at least not fundamentally. Those limitations are going to come fromare now coming from very different places: 1) Individuals refusing to use internet services that compromise their privacy. The FBI and other U.S. government agencies, as well as the U.K.Government, are apoplectic over new products from Google and Apple that are embedded with strong encryption, precisely because they know that such protections, while far from perfect, are serious impediments to their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to suggest, that one believes that Silicon Valley companies care in the slightest about peoples privacy rights and civil liberties. As much of the Snowden reporting has proven, these companies dont care about any of that. Just as the telecoms have been for years, U.S. tech companies were more than happy to eagerly cooperate with the NSA in violating their users privacy en masse when they could do so in the dark. But its precisely because they cant do it in the dark any more that things are changing, and significantly. Thats not because these tech companies suddenly discovered their belief in the value of privacy. They havent, and it doesnt take any special insight or brave radicalism to recognize that. Thats obvious. Instead, these changes are taking place because these companies arepetrified that the perception of their collaboration with the NSA will harm their future profits, by making them vulnerable to appeals from competing German, Korean, and Brazilian social media companies that people shouldnt use Facebook or Google because they will hand over that data to the NSA. Thatfear of damage to future business prospectsis what is motivating these companies to at least try to convince users of their commitment to privacy. And the more users refuse to use the services of Silicon Valley companies that compromise their privacyand, conversely, resolve to use only truly pro-privacy companies insteadthe stronger that pressure will become. Those who like to claim that nothing has changed from the NSA revelations simply ignore the key facts, including the serious harm to the U.S. tech sector from these disclosures, driven by the newfound knowledge that U.S. companies are complicit in mass surveillance. Obviously, tech companies dont care at all about privacy, but they care a lot about that. Just yesterday, the messaging service WhatsApp announced that it will start bringing end-to-end encryption to its 600 million users, which would be the largest implementation of end-to-end encryption ever. None of this is a silver bullet: the NSA will work hard to circumvent this technology and tech companies are hardly trustworthy, being notoriously close to the U.S. government and often co-opted themselves. But as more individuals demand more privacy protection, the incentives are strong. As The Verge notes about WhatsApps new encryption scheme, end-to-end means that, unlike messages encrypted by Gmail or Facebook Chat, WhatsApp wont be able to decrypt the messages itself, even if the company is compelled by law enforcement.

Link: Terrorism

The war on terror creates the justification for the surveillance state

Balkin, 08Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papersThe war on terror may be the most familiar justification for the rise of the National Surveillance State,14 but it is hardly the sole or even the most important cause. Government's increasing use of surveillance and data mining is a predictable result of accelerating developments in information technology. 15 As technologies that let us discover and analyze what is happening in the world become ever more powerful, both governments and private parties will seek to use them. 16

Link: OversightOversight fails Only creates a situation where surveillance actions are rubberstamped

Greenwald, 14(Glen, 2/17, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Obamas NSA reforms are little more than a PR attempt to mollify the public, http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillance-remains)This scam has been so frequently used that it is now easily recognizable. In the mid-1970s, the Senate uncovered surveillance abuses that had been ongoing for decades, generating widespread public fury. In response, the US Congress enacted a new law (Fisa) which featured two primary "safeguards": a requirement of judicial review for any domestic surveillance, and newly created committees to ensure legal compliance by the intelligence community. But the new court was designed to ensure that all of the government's requests were approved: it met in secret, only the government's lawyers could attend, it was staffed with the most pro-government judges, and it was even housed in the executive branch. As planned, the court over the next 30 years virtually never said no to the government. Identically, the most devoted and slavish loyalists of the National Security State were repeatedly installed as the committee's heads, currently in the form of NSA cheerleaders Democrat Dianne Feinstein in the Senate and Republican Mike Rogers in the House. As the New Yorker's Ryan Lizza put it in a December 2013 article on the joke of Congressional oversight, the committees "more often treat senior intelligence officials like matinee idols". As a result, the committees, ostensibly intended to serve an overseer function, have far more often acted as the NSA's in-house PR firm. The heralded mid-1970s reforms did more to make Americans believe there was reform than actually providing any, thus shielding it from real reforms.

Link: MediaMedia will always support surveillance

Business Insider, 13Jun 12, Glenn Greenwald: 'Slavishly Partisan' Democrats In The Media Are Cheerleading Policies They Used To Hate, http://www.businessinsider.com/glenn-greenwald-nsa-scandal-media-spying-surveillance-leak-2013-6 New revelations about the National Security Agency's surveillance programs have divided members of Congress and of the media apart from the normal partisan split. One person who isn't surprised about the lack of Democrats and liberals in the media challenging the Obama administration, however, is the man who has broken multiple stories based off leaks from former NSA contractor Edward Snowden Guardian journalist Glenn Greenwald. Greenwald told Business Insider late Tuesday night that he thinks some left-leaning members of the media such as Time magazine's Joe Klein and The New Yorker's Jeffrey Toobin have shifted stances on surveillance and civil liberties for "principle-free, hackish, and opportunistic" reasons. "I'm not surprised," Greenwald said in an email. "I've been amazed and disappointed for a long time at how the most slavishly partisan media Democrats who pretended to care so much about these issues when doing so helped undermine George Bush are now the loudest apologists and cheerleaders for these very same policies. "If they started a club called Liberal Pundits to Defend the National Security State, no auditorium in the country would be large enough to accommodate them. "To call them principle-free, hackish, and opportunistic is to be overly generous."

Link: 4th Amendment

Courts have gutted the 4th amendment it is of no use in checking the surveillance state, domestic surveillance will continue under the guise of foreign intelligence gathering

Balkin, 08Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papersYou might think the Fourth Amendment 70 would be the most important constitutional provision for controlling and preventing abuses of power in the National Surveillance State. But courts have largely debilitated the Fourth Amendment to meet the demands of the Regulatory and Welfare States, the National Security State, and the War on Drugs. 71 Much government collection and use of personal data now falls outside the Fourth Amendment's protection-at least as the courts currently construe it. The Supreme Court has held that there is no expectation of privacy in business records and information that people give to third parties like banks and other businesses; 72 in the digital age this accounts for a vast amount of personal information. Most e-mail messages are copied onto privately held servers, making their protection limited if not nonexistent. 73 Courts have also held that the Fourth Amendment poses few limits on foreign intelligence surveillance, which is largely regulated by FISA; 74 as a result, the executive branch has increasingly justified domestic surveillance by asserting that it is a permissible byproduct of foreign intelligence gathering.7 5

The government will circumvent the 4th amendment

Balkin, 08Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papersCurrently, governments are free to place cameras in public places like streets and parks because there is no expectation of privacy there. 76 Governments can also collect information that people leave out in the open, like their presence on a public street; or abandon, like fingerprints, hair, or skin cells. 77 Moreover, because the Fourth Amendment focuses on searches and seizures, it places few limits on collation and analysis, including data mining. 78 The Fourth Amendment does not require governments to discard any information they have already lawfully collected. Digital files, once assembled, can be copied and augmented with new information indefinitely for later analysis and pattern matching. Finally, whatever constitutional limits might restrain government do not apply to private parties, who can freely collect, collate, and sell personal information back to the government free of Fourth Amendment restrictions, effectively allowing an end-run around the ConstitutionImpact: Solvency Takeout: GeneralLegalism Crowds out Real Reform

Schlanger, 14(Margo, Henry M. Butzel Professor of Law, University of Michigan, The Problem With Legalism in the Surveillance State, Nov 7, http://justsecurity.org/17163/problem-legalism-surveillance-state/)To sum up, neither the Constitution nor FISA aims to optimally balance security and libertyand well-understood difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill that gap. Likewise the existing foundational Executive Order, 12333, is at the very least out-of-date. Accordingly, intelligence legalism and its compliance mindset, cannot achieve optimal policy. Its concomitant empowerment of lawyers is real and important, but does not deputize a pro-civil-liberties force. Indeed, legalism actually both crowds out the consideration of policy and interests (as opposed to law and rights), and legitimates the surveillance state, making it less susceptible to policy reform.

Intelligence legalism prevents real reform and ensures policy failure

Schlanger, 15(Margo, Henry M. Butzel Professor of Law, University of Michigan, Intelligence Legalism and the National Security Agency's Civil Liberties Gap, Harvard National Security Journal, 6 Harv. Nat'l Sec. J. 112)Theorists and observers in a variety of fields have developed the broad critique that law and its concomitant rights orientation may have the counterintuitive impact of decreasing the welfare of the purported rights holders--or, in a more modest version of the point, may ameliorate some prevalent set of harms but undermine more ambitious efforts. Focusing particularly on litigation, they argue that it is inherently a timid enterprise, and yet it crowds out other more muscular approaches. n317 Even with respect to out-of-court rights orientation, or "legalization," scholars have offered the insight that formalizing/legalistic approaches can come with real costs to their intended beneficiaries, depending on the context.n318 The issue is [*185] whether, in a particular institutional setting, these possibilities have materialized. In this Section, I examine two pathways by which intelligence legalism tends to impair the prospects of a softer civil-liberties protective policy. 1. Intelligence Legalism Crowds Out Interest Balancing This Article demonstrates the high salience of rights in this realm. Several related mechanisms convert that high salience into a devaluation of interests: First, rights occupy the "liberty" field because of the practical issue of attention bandwidth, which potentially applies both to agencies and advocates. After all, even large organizations have limited capacity. n319 NSA compliance is such an enormous task that little room remains for more conceptual weighing of interests and options. Recall that of the dozen-plus offices I described in Part II, just two--the Civil Liberties and Privacy Office at the NSA, and the Privacy and Civil Liberties Oversight Board--are currently playing a policy rather than strictly a compliance role. They are also, not coincidentally, the two newest and two smallest of the offices listed. I think, though, that this bandwidth issue is driven by a more conceptual, less practical, factor: that rights talk hides the necessity of policy judgments and, by its purity, diverts attention from that messier field. Morton Horwitz explains the point: A . . . troubling aspect of rights discourse is that its focus on fundamental, inherent, inalienable or natural rights is a way of obscuring or distorting the reality of the social construction of rights and duties. It shifts discussion away from the always disputable issue of what is or is not socially desirable. Rights discourse . . . wishes us to believe instead that the recognition of rights is not a question of social choice at all, as if in the normative and constitutional realm rights have the same force as the law of gravity. n320 [*186] Mary Dudziak makes a similar claim in her recent discussion of law and drone warfare, "In this context, law . . . does not aid judgment, but diverts our attention from morality, diplomacy, humanity, and responsibility in the use of force, and especially from the bloody mess left on the ground." n321 Even in Fourth Amendment jurisprudence, an area of constitutional doctrine explicitly imbued with policy considerations, we talk about rights as if they are somehow scientific, to be deduced rather than debated. The discussion that must accompany policy claims pales in prestige and importance by comparison. And from the perspective of their beneficiaries, judicially enforceable rights, with their promise of supremacy over competing interests, are shiny and magnetic. This is why the assertion of rights can be such a powerful organizing tool n322--even if those rights don't turn out to change much on the ground. As Rich Ford has written, "Rights are a secular religion for many Americans." n323 Or to quote Alan Freeman's classic article about civil rights, "Rights consciousness can offer sustenance to a political movement, however alienated, indeterminate or reified rights may be." n324 It is the purity, the apparent apolitical nature, of rights that makes them nearly the only coin available. By comparison with judicially enforceable rights, other methods of advancing individual liberty look feeble, contingent, jury-rigged. An accusation of illegality becomes the required first bid for any policy discussion, and a refutation of that accusation ends play. This dynamic is very much in evidence in the response to the PCLOB's 702 report, described above. Rights discourse stunts needed policy discourse. n325 2. Intelligence Legalism and Legitimation In addition, judicial review legitimates the American surveillance system; that is why reference to court supervision is surveillance proponents' first recourse when they want to suggest that everything is fine. It is, for example, a rare speech by a government official that fails to make reference to the FISA Court and its ratification of the government's surveillance [*187] programs. Below are passages, chosen essentially at random, from a speech by President Obama on the topic of signals intelligence reform n326: . "I ordered that our programs be reviewed by my national security team and our lawyers . . . . We increased oversight and auditing, including new structures aimed at compliance. Improved rules were proposed by the government and approved by the Foreign Intelligence Surveillance Court." . "[T]he Foreign Intelligence Surveillance Court . . . provides judicial review of some of our most sensitive intelligence activities." In language like the above, court involvement is offered as evidence of both legality and appropriateness; indeed, the two are conceptually merged. My point is not that FISA Court legitimation is phony. In fact, judicial review has real effects on the system--we know from the recently declassified documents that FISA Court review disciplines the surveillance system, holding it at least to the government's own representations. n327 Yet the oversight gain carries with it a legitimation cost; the existence of judicial review makes political change more difficult. Scholars, particularly critical legal studies scholars, have made this point in a large number of other contexts. For example, Alan Freeman argued that civil rights law--and law more generally--exists "largely to legitimize the existing social structure." n328 The polity at large is soothed, and the effect is felt even by rights beneficiaries, who frame and tame their aspirations to suit the inherently limited scope of potential judicial interventions. Freeman described his view that American civil rights litigation has amounted to a "process of containing and stabilizing the aspirations of the oppressed through tokenism and formal gestures which actually enhance the material lives of few." n329He wrote: Rights are granted to, or bestowed upon, the powerless by the powerful. They are ultimately within the control of those with authority to interpret or rewrite the sacred texts from which they derive. To enjoy them, one must respect the forms and norms laid down by those in power. One must especially avoid excesses in behavior or demands. n330 [*188] The point is not, for Freeman (and the plentiful literature he adduced), that law accomplishes nothing for its purported beneficiaries. If that were true, it could not legitimate: "[I]f law is to serve its legitimation function, [the] ultimate constraints [that come from politics] must yield up just enough autonomy to the legal system to make its operations credible for those whose allegiance it seeks as well as those whose self-interest it rationalizes." n331 But gains from rights may--and in the surveillance situation clearly do--make gains from politics less available. To sum up this Part, neither the Constitution nor FISA aims to optimally balance security and liberty--and frequently analyzed difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill that gap. Likewise the existing foundational Executive Order, 12,333, is at the very least out-of-date. Accordingly intelligence legalism, and its compliance mindset, cannot achieve optimal policy. Its concomitant empowerment of lawyers is real and important, but does not deputize a procivil liberties force. Indeed, legalism actually both crowds out the consideration of policy and interests (as opposed to law and rights), and legitimates the surveillance state, making it less susceptible to policy reform. Are there, then, non-legalistic reforms that could play a productive part? I turn next to this issue.

Impact: Solvency Takeout: International Advs

Domestic reforms do nothing for the international spying we do

Naughton, 15John, 6/6,professor of the public understanding of technology at the Open University, Surveillance laws are being rewritten post-Snowden, but what will really change?, The Guardian, http://www.theguardian.com/technology/2015/jun/06/surveillance-privacy-snowden-usa-freedom-act-congressOn the other side of the Atlantic, although the USA Freedom Act does introduce a number of reforms, the surveillance landscape remains largely unchanged. Americans phone records will still be hoovered up but now by the telephone companies, not the NSA and access to them will require a warranting process. And elements of transparency around government surveillance and the operations of the secret Fisa court will be introduced. So while there is some good news for American citizens in the new legislation, the position for the rest of the world is that nothing changes. The US retains the right to snoop on us in any way it pleases and of course to spy on any US citizen who has the misfortune to exchange a phone call or an email message with us. Edward Snowdens revelations have thus brought about some amelioration in the domestic surveillance regime within the US, but so far they have done little to protect those who live outside that benighted realm and quaintly regard privacy as a basic human right.

Impact: State ControlLegalism through surveillance reforms results in greater state control

Granick, 14(Jennifer, Director of Civil Liberties at the Stanford Center for Internet and Society, 11/13, The Surveillance States Legalism Isnt About Morals, Its About Manipulating the Rules, Just Security, http://justsecurity.org/17393/ics-legalism-morals-manipulating-rules/)

My question is whether legalism serves as a moral code for US Intelligence Community (IC) leadership, or only as a smokescreen. I believe the evidence shows that since 9/11,the IC, and specifically the NSA has not followed the rules. Rather, the agency has resorted to legalistic justifications in pursuit of other goalsnamely whatever might be useful in countering terrorism. Before 9/11, the agency may have been focused on complying with FISA. But afterthat day, the NSAs approach was that it could circumvent federal statutes and the Constitution so long as there was some visceral connection to looking for terrorists. In other words, since 9/11, the moral center of gravity in the surveillance world has focused on doing whatever is necessary for hunting terrorists, not following the rules. Margo also argues that the NSAs legalism equates to, for better or worse, the empowerment of lawyers. Sign-off by lawyers is, as Margo says, an important part of the process. Lawyer opinions gave telecommunications firms legal immunity for their cooperation with the government in conducting mass surveillance. Lawyers were used to compel compliance from underlings within the intelligence community. Theyve been used cynically for public relations purposes, trading on the public trust in the actions of government lawyers to cloud the public debate over legality. Theyve been used tomarginalize the role of Congress in approving surveillance. The decisions of lawyers inside the surveillance community have allowed Americas spies to secretly expand their power as they develop classified capabilities and practices that the public and Congress havent yet become aware of, and have not even begun to regulate. But calling this empowerment is misleading. We see lawyers who object to policies that may harm civil liberties bypassed in favor of handpicked counsel who give their bosses the answers they want. Lawyers are ratifying surveillance decisions policy makers have already made. Thats not empowerment, its subservience.Surrendering selfhood to the State makes extinction inevitable

Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ., Spring, 11 Ariz. J. Int'l & Comp. Law 1)This, then, is an altogether different kind of understanding. Rather than rescue humankind by freeing individuals from fear of death, this perspective recommends educating people to the truth of an incontestable relationship between death and geopolitics. By surrendering ourselves to States and to traditional views of self-determination, we encourage not immortality but premature and predictable extinction. It is a relationship that can, and must, be more widely understood.There are great ironies involved. Although the corrosive calculus of geopolitics has now made possible the deliberate killing of all life, populations all over the planet turn increasingly to States for security. It is the dreadful ingenuity of States that makes possible death in the billions, but it is in the expressions of that ingenuity that people seek safety. Indeed, as the threat of nuclear annihilation looms even after the Cold War, 71 the citizens of conflicting States reaffirm their segmented loyalties, moved by the persistent unreason that is, after all, the most indelible badge of modern humankind.As a result, increasing human uncertainty brought about by an unprecedented vulnerability to disappearance is likely to undermine rather than support the education required. Curiously, therefore, before we can implement such education, we will need to reduce the perceived threat of nuclear war 72 and enlarge the belief that the short-term goal of nuclear stability is within our grasp. To make this possible we must continue to make progress on the usual and mainstream arms control measures and on the associated strategies of international cooperation and reconciliation. In this connection, arms control [*25] obligations must fall not only on nuclear weapon States, but also upon non-nuclear States that threaten others with war or even genocide."Death," says Norbert Elias, "is the absolute end of the person. So the greater resistance to its demythologization perhaps corresponds to the greater magnitude of danger experienced." 73 Let us, then, reduce the magnitude of danger, both experienced and anticipated. But let us also be wary of nurturing new mythologies, of planting false hopes that offer illusions of survival in a post-apocalypse world. Always desperate to grasp at promises that allay the fears of personal transience, individuals are only too anxious to accept wish-fantasies of security in the midst of preparations for Armageddon.

Privileging the power of the state over that of the individual makes war and genocide inevitable

Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ., Spring, 11 Ariz. J. Int'l & Comp. Law 1)Yet, this situation is enormously ironic. By its very nature, the self-determination of peoples and nations undermines the self-determination of individuals. 6 Encouraging the expanding fragmentation of the world into [*3] competing sovereignties, this right under international law makes it nearly impossible for persons to see themselves as members of a single human family. As a result, the presumed differences between peoples are taken as critical and the essential similarities dismissed as unimportant. Not surprisingly, war 7 and genocide 8 are not only the legacy of the current century, but also the most probable planetary future.Self-determination, of course, has its place. Under the United Nations Charter, this principle is treated as an indispensable corrective to the crime of colonialism. Hence, colonial peoples are granted an "inherent" right to struggle [*4] by all necessary means, 9 and United Nations member States are instructed to render all necessary moral and material assistance to the struggle for freedom and independence. 10Yet, the cumulative effect of claims for self-determination is violence and death. Reaffirming individual commitments to life in the "herd," these claims contradict the idea of global oneness and cosmopolis. From identification as Moslem Azerbaijanis or Christian Armenians, as Croats or Serbs, individuals all over the world surrender themselves as persons, being told again and again that meaning derives from belonging. Not surprisingly, these individuals are too often willing to do anything that the group commands -- even the mass killing of other human beings, as long as the victims are "outsiders."[*5] What do we really seek in world affairs? If it is authentic peace and an end to war crimes 11 and crimes against humanity, 12 then the expectation of self-determination must be balanced against the needs of planetization, of a new world order 13 in which the commonality and community of the entire human species takes precedence over the lethal calls of separatism, ethnic rivalry, and militaristic nationalism. Poised to consider that national liberation can itself be the source of armed conflict and murder, individuals everywhere must learn to affirm their significance outside the herd, as persons rather than as members.The herd is always potentially dangerous, whether it be the herd of a criminal band, a discontented nationality, or a State. 14 Before the residents of this endangered planet can discover safety in world politics, they will have to discover power and purpose within themselves. In the end, humankind will rise or fall on the strength of a new kind of loyalty, one that recognizes the contrived character of national, religious, and ethnic differences and the primacy of human solidarity. Although this kind of loyalty is certainly difficult to imagine, especially when one considers that organization into and belonging within competitive herds still offers most people a desperately needed sense of self-worth, there seems to be no alternative. Whether we seek an accommodation of Palestinians 15 and Israelis 16 in the Middle East, of Catholics and Protestants in Northern Ireland, or of different nationalities in Eastern Europe, in the former USSR, or in the former Yugoslavia, the only real hope lies in getting those involved to see themselves as individuals.

Surrendering selfhood to the state makes war and genocide inevitable

Beres 94 (Louis Rene, Prof of Intl Law in Department of Poly Sci @ Purdue Univ., Spring, 11 Ariz. J. Int'l & Comp. Law 1)The State requires its members to be serviceable instruments, suppressing every glimmer of creativity and imagination in the interest of a plastic mediocrity. Even political liberty within particular States does nothing to encourage opposition to war or to genocide in other States. Since "patriotic self-sacrifice" is demanded even of "free" peoples, the expectations of inter-State competition may include war and the mass killing of other peoples.In the final analysis, war and genocide are made possible by the surrender of Self to the State. Given that the claims of international law 35 are rendered impotent by Realpolitik, this commitment to so-called power politics is itself an expression of control by the herd. Without such control, individuals could discover authentic bases of personal value inside themselves, depriving the State of its capacity to make corpses of others.Impact: Panopticon

Surveillance state leads to panoptic governmentBalkin, 08Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papersDecades ago Michel Foucault argued that modern societies had become increasingly focused on watching and measuring people in order to control them, to normalize their behavior and to make them docile and obedient. 5 1 His famous example was Jeremy Bentham's idea of a Panopticon-a prison designed so that the prisoners could always be watched but would not know exactly when.52 By making surveillance ubiquitous, governments and private organizations could discourage behavior they deemed unusual or abnormal. Today's National Surveillance State goes beyond Foucault's Panoptic model. Government's most important technique of control is no longer watching or threatening to watch. It is analyzing and drawing connections between data. Much public and private surveillance occurs without any knowledge that one is watched. More to the point, data mining technologies allow the state and business enterprises to record perfectly innocent behavior that no one is particularly ashamed of and draw surprisingly powerful inferences about people's behavior, beliefs, and attitudes. 5 3 Over time, these tools will only become more effective. We leave traces of ourselves continually, including our location, our communications contacts, our consumption choices-even our DNA

We must consider the normalizing effects of the plan over any violence it might prevent. Such a prioritization allows us to interrogate the initial conditions that allow symptomatic violence to exist and construct an agency to mitigate themBevir 99[Mark Bevir, Political Theory Reader at the University of Newcastle, Foucault and Critique: Developing Agency against Autonomy, Political Theory, Vol. 27, No. 1, February 1999, p. 65-84, JSTOR]A key question raised by my account of a composed Foucault's concept of governmentality is, what constitutes a worthwhile form of agency? To appreciate just how vital this question now has become for us, we need only to recall the strength of Foucault's critique of the normalizing effect of modem power. Modem power is not violent since it passes through the consciousness of the individual in a way that entails a recognition of the other as an agent. Nonetheless, Foucault consistently argues that individuals in modem society typically use their agency only to regulate themselves in accord with social norms.33 Far from resisting the normalizing effects of power, they act so as to promote them. Moreover, Foucault clearly regards this as a bad thing, complaining, in particular, about the state having taken over the techniques of pastoral power. Sometimes his distaste for the normalizing effects of modern power even leads him to imply it is worse-more damaging-than overt vio-lence. After all, violence is at least visible and honest, whereas modern power renders us insipid and uniform while pretending to liberate our true, inner selves. Power might be preferable to violence in that it recognises the other as an agent, but if the strength of modern power is such that the other uses his agency only to normalize himself, then perhaps we should prefer an honest violence to a deceitful power. It is this possibility that gives urgency to the question of what constitutes a worthwhile form of agency. We need forms of agency that resist not only the overt violence so often associated with the state, but, at least as important, the normalizing effects of a pastoral power taken over by the modern state. As Foucault insisted, "the political, social, philosophical problem of our days is not to try to liberate the individual from the state, and from the state's institutions, but to liberate us both from the state and from the type of individualization which is linked to the state."34 His work on an ethic of care for the self provides us with suggestions as to the types of resistance we need to develop in order to sustain such liberation.

Challenging this model of governance is key to good policy making

Backer 08Larry Cat Backer, Visiting Professor of Law, Tulane Law School; Professor of Law, Pennsylvania State University; Director, Coalition for Peace & Ethics, Winter 2008, Indiana Journal of Global Legal Studies Vol. 15 #1This article interrogates one critical aspect of complexity and fracture in regulatorypower.1 Specifically, it focuses on surveillance2 as a regulatory mechanism.3I will explore some of the complexities of this regulatory mechanism in emerginggovernance systems in which private entities are engaged in sovereign functionsand public entities participate in the market. The thesis of this article is fairlystraightforward: surveillance represents a complex of assumptions and objectivesbeyond mere information gathering or observation. Surveillance serves both instrumentaland substantive purposes that affect the power relationships amongstates, economic entities, and individuals.4 It is both technique and the reification of norms that shape the specific character of the gaze.5 Surveillance is both ministerialthe gathering of informationand administrativethe elaboration ofjudgments of the importance of the actions or individuals observed. Surveillanceis also a function of its techniques.6 The technologies of surveillance suggest thelimits of the gaze and the scope of control through visibility. While virtually everythingcan be monitored, power (and the limits of power) is a function of controlover the way power is understood, gathered, and used. Moreover, the powerto decide what parts of monitored activity may be revealed, extracted, analyzed,judged, and relied on has important consequences, consequences that themselvesare the subject of further surveillance.7 Surveillance is one of the critical mechanisms of this expansion of privatepower into what had been an exclusively public sphere. Increasingly, public bodiesare requiring, or permitting, private entities to monitor and report on the conductand activities of a host of actors. It increasingly serves public bodies as a substitutefor lawmaking. Surveillance is a flexible engine. It can be used to decide whatsorts of facts constitute information, to determine what sorts of information oughtto be privileged and which do not matter, to gather that information, to empowerpeople or entities to gather information, and to act on the information gathered.In its domestic form it can be used to assign authority over certain types of informationto private enterprises and then hold those enterprises to account on thebasis of the information gathered.8 In its transnational form it can be used to constructa set of privileged information that can be gathered and distributed voluntarilyby private entities on the basis of systems created and maintained by international public or private organizations as an alternative to formal regulationand to provide a means of harmonizing behavior without law.9 Surveillance in itsvarious forms provides a unifying technique with which governance can be effectuatedacross the boundaries of power fractures without challenging formalregulatory power or its limits. It avoids the barrier between the public and privatespheres; it substantially increases the regulatory palette of states without the complicationsof the usual limitations of public formal lawmakingespecially thoseof accountability and transparency. The consequences of surveillance, particularly those consequences on theshape of governance, are to a great extent a function of the character of the surveillancepower elaborated.10 The principal effects will tend to promote a furtherconvergence of public and private regulatory power.11 This convergence arisesfrom a fracturing of traditional divisions of power.12 A sovereign is said to lose itscharacter as such when it acts, not as regulator of a market, but in the manner of a private player within it.13 The reciprocal principle has not been accepted dejure; a private actor is not said to lose its character as a private actor when it acts inthe manner of a sovereign. Still, private players now are required to play the roleof regulator and have sought that role for themselves de facto.14 And, increasingly,public bodies are requiring, or permitting, private entities to monitor and reporton the conduct and activities of a host of actors.15 Surveillance, then, functions as more than a descriptor of methodology. Surveillanceis a new form of lawmaking through which the old boundaries betweenthe public and private, national and transnational, are made irrelevant. The constructionof complex systems of conscious and permanent visibility, as both normativesystems and bundles of specific techniques, affects the power relationshipsamong states, economic entities, and individuals. It represents modalities of fracturesand complications in assertions of regulatory power, replicating its formsand effects throughout society.16 Its privatization tends to complicate the distinctionbetween private and public institutions and between assertions of private(market or personal welfare maximizing) and public (regulatory or stakeholderwelfare maximization). Surveillance cuts across bordersit embodies the techniquesand sensibilities of an essentially transnational response to problems ofgovernance.17 To understand the complexities and vectors of surveillance is tograsp the shape of converging public/private governance in this century

Impact: Race

The Surveillance State props up racist structures of empireKundnani and Kumar, 15(Arun, Professor @ New York University and Deepa, Associate Professor of Media Studies and Middle East Studies @ Rutgers University, Race, Surveillance and Empire, Spring, International Socialist Review, http://isreview.org/issue/96/race-surveillance-and-empire)In what follows, we argue that the debate on national security surveillance that has emerged in the United States since the summer of 2013 is woefully inadequate, due to its failure to place questions of race and empire at the center of its analysis. It is racist ideas that form the basis for the ways national security surveillance is organized and deployed, racist fears that are whipped up to legitimize this surveillance to the American public, and the disproportionately targeted racialized groups that have been most effective in making sense of it and organizing opposition. This is as true today as it has been historically: race and state surveillance are intertwined in the history of US capitalism. Likewise, we argue that the history of national security surveillance in the United States is inseparable from the history of US colonialism and empire. The argument is divided into two parts. The first identifies a number of moments in the history of national security surveillance in North America, tracing its imbrication with race, empire, and capital, from the settler-colonial period through to the neoliberal era. Our focus here is on how race as a sociopolitical category is produced and reproduced historically in the United States through systems of surveillance. We show how throughout the history of the United States the systematic collection of information has been interwoven with mechanisms of racial oppression. From Anglo settler-colonialism, the establishment of the plantation system, the postCivil War reconstruction era, the US conquest of the Philippines, and the emergence of the national security state in the post-World War II era, to neoliberalism in the post-Civil Rights era, racialized surveillance has enabled the consolidation of capital and empire.

Impact: Rights

The surveillance state kills rightsBalkin, 08Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papersThe National Surveillance State poses three major dangers for our freedom. Because the National Surveillance State emphasizes ex ante prevention rather than ex post apprehension and prosecution, the first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights. The Bush administration's military detention practices and its NSA surveillance program are two examples. The administration justified detaining and interrogating people-including American citizens-in ways that would have violated traditional legal restraints on the grounds that it was not engaged in ordinary criminal law enforcement. 62 It sought intelligence that would prevent future attacks and wanted to prevent terrorists from returning to the battlefield.6 3 Similarly, the administration defended warrantless surveillance of people in the United States by arguing that the President was not engaged in criminal prosecutions but in collection of military intelligence designed to fight terrorism. 64

Impact: Pre-emption

The surveillance state leads to a police stateBalkin, 08Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 2008-2009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1224&context=fss_papersThe second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services. If data mining can help us locate terrorists, why not use it to find deadbeat dads, or even people who have not paid their parking tickets? 65 If surveillance technologies signal that certain people are likely threats to public order, why not create a system of preventive detention outside the ordinary criminal justice system? 66 Why not impose sanctions outside the criminal law, like denying people the right to board airplanes or use public facilities and transportation systems? And if DNA analysis can identify people who will likely impose high costs on public resources, why not identify them in advance and exclude them from public programs and other opportunities? The more powerful and effective our technologies of surveillance and analysis become, the more pressure the government will feel to route around warrant requirements and other procedural hurdles so that it can catch potential troublemakers more effectively and efficiently before they have a chance to cause any harm

Alt: Critique Solves

Criticism is key to challenging the surveillance system

Setty, 15(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)The surveillance and data collection that are part of the NSA Metadata Program have been largely validated by two forms of relatively weak judicial review: Article III courts have, until recently, largely refused to hear the merits of cases challenging the government surveillance, instead finding that plaintiffs are unable to satisfy the standing requirement,n28or dismissing suits at the pleadings stage due to invocations of the state secrets privilege by the government.n29The Foreign Intelligence Surveillance Court (FISC), tasked with determining the legality of many of the government's surveillance requests, has largely acquiesced to the government's requests over the years.n30Cases litigated after the Snowden revelations of June 2013 suggest, however, that the judicial deference offered to the government in many previous counterterrorism cases may be curtailed in light of public attention and critique of the NSA Metadata Program, as well as a[*76]reinvigorated judicial embrace of the privacy protections embodied in the Fourth Amendment.n31

Critique alone leads to political action in the future

Hutchinson and Monahan in 84CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law ReviewThe Critical scholars' radical challenge to traditional legal thought is unsettling. Unlike the in-house squabbles between the Harts and the Fullers, the debate between the Critical scholars and mainstream legal theorists is not over matters of degree or emphasis. And because the conflict is over something much more profound and elemental than legal doctrine, the likelihood of cooptation is small. n192 Further, the Critical scholars do not seek to displace traditional jurists from center stage merely to have the spotlight focused on themselves.Instead, they want to revolutionize the whole theory and performance of the American legal drama. They do not simply wish to exchange the scripts and the sentiments of Shakespeare for those of Brecht or Fugard. The message and the medium must change. The focus of attention must shift from the artifacts of the juristic stage to the reality of the citizen audience. The ultimate goal must be to [*244] promote "street theater," the spontaneous involvement of people in everyday situations. n193The ambition of the Critical scholars is revolution, not reform. For them, intellectual critique is merely a prelude to, and platform for, political action. n194

Overcoming social heirarchies can only happen with a shattering of the legal order

Hutchinson and Monahan in 84CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law ReviewThe distinctive feature of the CLS movement, therefore, is its desire to shatter the limiting conceptions of the possibilities of human association and of social transformation embodied in liberal legal thought. The CLSers' enterprise is to complete the modern rebellion against the view that social arrangements are natural or inevitable. They want to expose society as the vulgar and contingent product of interrupted fighting. Their central strategy is to suggest that social order exists only because, at some arbitrary point, the struggle between individuals was halted and truce lines were drawn up. These truce lines define the structure of a society's politics and production. Although these truce lines initially are simply the product of an uneasy [*217] deal between combatants, eventually they stabilize and become fixed. A sense of stability is generated by the insistence that the truce lines represent more than the residue of interrupted fighting: Strength becomes right, obedience becomes duty, and the ad hoc nature of hierarchical division in society is obscured. n77Inspired by a vision of the contingent nature of all social worlds, the CLS project is to identify the role played by law and legal reasoning in the process through which social structures acquire the appearance of inevitability. By identifying and overturning the extant forms of legal consciousness, the CLSers hope to liberate the individual in society. Their method for exposing the distortion between the apparent order of the legal process and the disorder of social life is to examine the intellectual devices that conceal this discrepancy. Whereas the Realists exposed indeterminacy in legal doctrine, the Critical scholars abstract from legal materials the underlying premises that combine to form a distinct way of looking at the world. By demonstrating that social life is much less structured and much more complex, much less impartial and much more irrational, than the legal process suggests, the interests served by legal doctrine and theory will surface. n78

Alt: States CP

The States are the best alternative to avoid federal cooption

Trejo, 15(Shane, Journalist, 1/12, Glenn Greenwald: Congress Wont Stop NSA, http://www.offnow.org/glenn_greenwald_congress_won_t_stop_nsa)When pro-privacy members of Congress first unveiled the bill many months ago, it was actually a good bill: real reform. But the White House worked very hard in partnership with the House GOPto water that bill down so severely that what the House ended up passing over the summer did more to strengthen the NSA than rein it in, which caused even the ACLU and EFF to withdraw their support. The Senate bill rejected last night was basically a middle ground between that original, good bill and the anti-reform bill passed by the House... The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSAs powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means theyd easily co-opt the entire reform process. As usual, Greenwald's commentary was poignant, punchy and on the mark. But he did miss a possible alternative to begging Washington D.C. to reform the NSA - action at the state level Greenwald failed to mention the developments in Utah, which have garnered a massive amount of press coverage. The overwhelming support for our 4th Amendment Protection Act in that state is a game changer. It is opening people's eyes to the effectiveness of state-level resistance, and taking the focus off of a Congress that refuses to lift a finger to fix chronic abuses like warrantless NSA spying. Our views are firmly in the mainstream of political thought. It has been widely recognized that the legal basis for our bills is sound. That fact was not refuted by anyone during the Utah committee hearings. This is how the NSA can be defeated. It will not be easy, but it is possible. On the other hand, federal-level reforms are impossible, as Greenwald correctly noted. Voting the pro-NSA politicians out is futile as well. These conventional ways of pushing back have failed. It is time to try something different. The OffNow plan is something new and innovative when it comes to dealing with unconstitutional spying. By denying the NSA the resources that it needs to function, we can stop its illegal behavior. The NSA cannot spy on all of us without our water. Let's cut them off now, and restore our privacy rights before time runs out.

AT: Perm/Reforms Work

Reforms are doomed to fail they actually placate resistance making real change impossibleGreenwald, 14(Glen, 2/17, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Obamas NSA reforms are little more than a PR attempt to mollify the public, http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillance-remains)In response to political scandal and public outrage, official Washington repeatedly uses the same well-worn tactic. It is the one that has been hauled out over decades in response to many of America's most significant political scandals. Predictably, it is the same one that shaped President Obama's much-heraldedFriday speech to announce his proposals for "reforming" the National Security Agency in the wake of seven months of intense worldwide controversy. The crux of this tactic is that US political leaders pretend to validate and even channel public anger by acknowledging that there are "serious questions that have been raised". They vow changes to fix the system and ensure these problems never happen again. And they then set out, with their actions, to do exactly the opposite: to make the system prettier and more politically palatable with empty, cosmetic "reforms" so as to placate public anger while leaving the system fundamentally unchanged, even more immune than before to serious challenge.Reforms only serve to prop up and whitewash the surveillance state

Greenwald, 14(Glen, 2/17, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Obamas NSA reforms are little more than a PR attempt to mollify the public, http://www.theguardian.com/commentisfree/2014/jan/17/obama-nsa-reforms-bulk-surveillance-remains)Ultimately, the radical essence of the NSA a system of suspicion-less spying aimed at hundreds of millions of people in the US and around the world will fully endure even if all of Obama's proposals are adopted. That's because Obama never hid the real purpose of this process. It is, he and his officials repeatedly acknowledged, "to restore public confidence" in the NSA. In other words, the goal isn't to truly reform the agency; it is deceive people into believing it has been so that they no longer fear it or are angry about it. As the ACLU's executive director Anthony Romero said after the speech: The president should end not mend the government's collection and retention of all law-abiding Americans' data. When the government collects and stores every American's phone call data, it is engaging in a textbook example of an 'unreasonable search' that violates the constitution. That, in general, has long been Obama's primary role in our political system and his premiere, defining value to the permanent power factions that run Washington. He prettifies the ugly; he drapes the banner of change over systematic status quo perpetuation; he makes Americans feel better about policies they find repellent without the need to change any of them in meaningful ways. He's not an agent of change but the soothing branding packaging for it.

Reforming the surveillance state actual makes the system much worseShears, 14(Matthew, leads the Center for Democracy and Technologys Global Internet Policy and Human Rights (GIPHR) activities, Snowden and The Politics of Internet Governance, Center for Democracy and Technology, https://cdt.org/blog/snowden-and-the-politics-of-internet-governance/)Mass surveillance programs have developed not due to some failure of participatory Internet governance processes, but rather through deliberate actions, taken by governments, that disregard the fundamental rights of their citizens and people both inside and outside their territory. Governments have developed national-level law and policy, colluded with one another through intergovernmental agreements, and co-opted private actors into their surveillance schemes all under a veil of secrecy intended to keep non-governmental stakeholders out of the deliberations. Increasing government control over Internet governance will not change that it would almost certainly make the situation much worse. We have surveillance programmes that abuse human rights and lack in transparency and accountability precisely because we do not have sufficiently robust, open, and inclusive debates around surveillance and national security policy. Indeed, even in those countries that purport to be the most open and transparent and that are consistent supporters of the multi-stakeholder model, surveillance and security policy remain, unfortunately, for the state alone. Linking the Snowden revelations to a failure of open and participatory multistakeholder Internet governance is simply nonsense.

AT: Internal ChecksInternal checks fail

Setty, 15(Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of International Law, 51 Stan. J Int'l L. 69)On the other hand, the fact that the NSA itself has brought potential compliance incidents to the notice of the FISCn80indicates at least some internal policing of these programs. However, this is hardly an effective substitute for external review and accountability mechanisms that would ensure that consistent controls are in place. Further, the self-reporting of these compliance incidents does not in any way allow for discourse over the larger structural questions surrounding the surveillance programs.

AT: Snowden Proves Alt FailsSnowden proves that only the alt can solve

Greenwald, 2015(Glen, journalist, constitutional lawyer, and author of fourNew York Timesbest-selling books on politics and law. His most recent book,No Place to Hide, is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world, Congress is irrelevant on Mass Surveillance. Heres What Matters Instead, The Intercept, https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congress-stopping-nsas-mass-surveillance/)2)Other countries taking action against U.S. hegemony over the internet.Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S. domination of the internet.Brazil isbuilding a new undersea internet infrastructurespecifically to avoid U.S. soil and thus NSA access. That same countrypunished Boeingby denying the U.S. contractor a long-expected $4.5 billion contract for fighter jets in protest over NSA spying. Another powerful country, Germany, hastaken the lead with Brazilin pushing for international institutions and regulatory schemes to place real limits on NSA mass surveillance. U.S. diplomatic relations withnumerous key countrieshave beenseverely hamperedby revelations of mass surveillance.

AT: No Alt Args

Not offering a stable alternative is the point true and constant criticism solves

Hutchinson and Monahan in 84CRITICAL LEGAL STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan. L. Rev. 199, Stanford Law ReviewAccordingly, the Critical scholars cannot offer a vision of a reconstituted society while remaining faithful to their own basic theoretical assumptions. If they hold that human existence is possible, and indeed can attain its finest fulfillment, without an ideology, they must concede that social transformation is a very personal, instinctive, and individual act. Otherwise, in planning such transformative activity, they would simply be exchanging one form of consciousness for another. Yet if they hold that human existence requires some ideology, they must concede that theirs is merely one more consciousness competing in the unwinnable contest over which is the best ideology for man.

AFF

Legal Restraints Solve 2acAppeals for legal restraint are a crucial supplement to political resistance to executive power political restraints alone fail

Cole 12 (David, Prof of Law @ Georgetown, The Politics of the Rule of Law: The Role of Civil Society in the Surprising Resilience of Human Rights in the Decade after 9/11 http://www.law.uchicago.edu/files/files/Cole%201.12.12.pdf p. 51-53)

As I have shown above, while political forces played a significant role in checking President Bush, what was significant was the particular substantive content of that politics; it was not just any political pressure, but pressure to maintain fidelity to the rule of law. Politics standing alone is as likely to fuel as to deter executive abuse; consider the lynch mob, the Nazi Party in Germany, or xenophobia more generally. What we need if we are to check abuses of executive power is a politics that champions the rule of law. Unlike the politics Posner and Vermeule imagine, this type of politics cannot be segregated neatly from the law. On the contrary, it will often coalesce around a distinctly legal challenge, objecting to departures from distinctly legal norms, heard in a court case, as we saw with Guantanamo. Congresss actions make clear that had Guantanamo been left to the political process, there would have been few if any advances. The litigation generated and concentrated political pressure on claims for a restoration of the values of legality, and, as discussed above, that pressure then played a critical role in the litigations outcome, which in turn affected the political pressure for reform. There is, to be sure, something paradoxical about this assessment. The rule of law, the separation of powers, and human rights are designed to discipline and constrain politics, out of a c